STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs.

MAMA D'S PASTA AND GRILLE,

Respondent.

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) Case No. 07-0491

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RECOMMENDED ORDER

On March 21, 2007, an administrative hearing in this case was held by video teleconference between Tallahassee and Tampa, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Anthony Della Monica, pro se

Mama D's Pasta & Grille 1819 Audubon Street

Clearwater, Florida 33764

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 14, 2006, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), alleges that Mama D's Pasta and Grille (Respondent), a restaurant owned and operated by Anthony Della Monica, was found to be in violation of various specified provisions of food safety regulations. The Respondent disputed the allegations and requested a formal administrative hearing. The Petitioner forwarded the matter to the Division of Administrative Hearings, which scheduled and conducted the formal hearing.

At the hearing, the Petitioner presented the testimony of one witness and had Exhibits 1 through 4 admitted into evidence. The Respondent presented the testimony of one witness.

The Transcript of the hearing was filed on April 5, 2007. The Petitioner filed a Proposed Recommended Order on April 12, 2007.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2006).

2. At all times material to this case, the Respondent was a restaurant located at 7551 West Waters Avenue, Tampa,

   Florida 33615, holding Food Service license number 3903935.

   
   

3. On July 11, 2006, Richard Decker, a senior inspector representing the Petitioner, performed a routine inspection of the Respondent that resulted in emergency closure of the restaurant due to a roach infestation problem. The inspection report stated that the deadline for correcting the roach problem was July 12, 2006, and the matter was apparently resolved in a timely manner.

4. Mr. Decker found additional violations of applicable Food Code regulations on July 11, 2006, which were cited in a written Food Service Inspection Report, a copy of which was provided to restaurant owner Anthony Della Monica on the date of the inspection.

5. Mr. Decker's inspection identified critical and non- critical violations. Critical Food Code violations pose serious public health risk due to potential transmission of food-borne illness. Critical life safety violations such as blocked exits increase the risk of public injury. Violations that do not pose

   a direct and imminent public health risk are identified as non- critical.

6. Other than as set forth herein, the violations cited during the July inspections were to have been corrected by the time of Mr. Decker's August 15, 2006, re-inspection. Many of the previously cited violations had not been corrected at that time. The August 15, 2006, re-inspection report was received by Mr. Della Monica on the date of the inspection.

7. Mr. Decker again re-inspected the restaurant on October 20, 2006. Several violations previously cited in July remained uncorrected at that time. The October 20, 2006, re- inspection report was received by Head Chef Kurt Clasen on the date of the inspection.

8. During the July inspection, Mr. Decker cited the Respondent for failing to have a certified food manager on the premises and for lacking of proof that employees had received food safety training. Such training was intended to reduce the potential for transmission of food-borne illness. These violations were deemed critical.

9. Although Mr. Decker established an extended deadline of October 11, 2006, to correct the certified food manager and employee training violations, they remained uncorrected by the October 20, 2006, re-inspection.

10. During the July inspection, Mr. Decker cited the Respondent for lacking a hand sink in the dishwashing area and noted that a hand sink at the rear of the kitchen was being used for food preparation. The requirements related to hand sinks were intended to reduce the potential for transmission of food- borne illness. The violations of the requirements were deemed critical. The Respondent still lacked a hand sink in the dishwashing area at the time of both re-inspections.

11. During the July inspection, Mr. Decker cited the Respondent for using extension cords on a non-temporary basis to power equipment in the kitchen. The Respondent's improper electrical cord use was a fire hazard and was deemed a critical violation. By law, extension cords can only be used on a temporary basis. The cited extension cords remained in use by the Respondent at the time of both re-inspections.

12. During the July inspection, Mr. Decker cited the Respondent for removing food products from original packaging and storing them in unlabeled containers, a critical violation that increased the risk of confusing food products with non- edible products such as cleaning chemicals. The violation remained uncorrected at the time of both re-inspections.

13. During the July inspection, Mr. Decker cited the Respondent for lacking a chemical testing kit used to ascertain that the dishwasher sanitization function was operating

    properly. Lack of proper sanitation increased the potential for transmission of food-borne illness. The violation, deemed critical, was not corrected by the time of either re-inspection.

14. During the July inspection, Mr. Decker cited the Respondent for failing to have a visible thermometer in a pizza- holding unit. The inability to monitor food-holding temperatures increased the potential for transmission of food- borne illness and was a critical violation. The violation was uncorrected at the time of the August re-inspection as it should have been, but it had been remedied by the October re- inspection.

15. During the July inspection, Mr. Decker cited the Respondent for the lack of light bulb shields in a food service area, which increased the risk that food could be contaminated by glass in the event of light bulb breakage. This was deemed a non-critical violation and remained uncorrected at the time of either re-inspection.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57, Fla. Stat. (2006).

17. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See Chapter 509, Fla. Stat. (2006). The Petitioner

    has adopted by incorporation the various provisions of the Food Code referenced herein. Fla. Admin. Code R. 61C-4.010(1).

18. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met, and the Respondent has violated the statute and rules as set forth herein.

19. The Administrative Complaint charged the Respondent with a violation of Florida Administrative Code Rule 61C- 4.023(1), which requires that "[a]ll managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted in this chapter." The evidence established that the Respondent failed to comply with the requirement to have a certified food manager at any time material to this proceeding.

20. The Administrative Complaint further charged the Respondent with a violation of Section 509.049, Florida Statutes (2006). Subsection (5) of the cited statute provides as follows:

    It shall be the duty of each public food service establishment to provide training in accordance with the described rule to all

    food service employees of the public food service establishment. The public food service establishment may designate any certified food service manager to perform this function. Food service employees must receive certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. Proof of training for each food service employee shall include the name of the trained employee, the date of birth of the trained employee, the date the training occurred, and the approved food safety training program used.

    
    

21. The Respondent failed to produce proof that the employees had been trained as required at any time material to this proceeding.

22. The Administrative Complaint charged the Respondent with a violation of Food Code Rule 5-204.11, which requires that a hand washing facility be located "to allow convenient use by Employees in food preparation, food dispensing, and warewashing areas." The Respondent did not have a hand sink located at the dishwasher location at any time material to this proceeding.

23. The Administrative Complaint charged the Respondent with a violation of Florida Administrative Code

    Rule 61C-1.004(11), which prohibits use of extension cords "except during cleaning, maintenance and other temporary activities." There is no credible evidence that the

    Respondent's use of extension cords was related to cleaning, maintenance or other temporary activities.

24. The Administrative Complaint charged the Respondent with a violation of Food Code Rule 3-302.12, which provides as follows:

    Working containers holding food or food ingredients that are removed from their original packages for use in the food establishment, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the food except that containers holding food that can be readily and unmistakably recognized such as dry pasta need not be identified.

    
    

25. The evidence establishes that the Respondent improperly stored food supplies in unlabeled containers as observed during the inspections and re-inspections of the restaurant.

26. The Administrative Complaint charged the Respondent with a violation of Food Code Rule 2-103.11(I), which requires that a designated "person in charge" of the food service establishment ensure that employees are properly sanitizing cleaned equipment and utensils before they are reused, in part through routine monitoring of and chemical concentration, pH, temperature, and exposure time for chemical sanitizing. The Respondent did not have a proper chemical test kit to test the

    dishwasher sanitization function and was unable to comply with this requirement.

27. The Administrative Complaint charged the Respondent with a violation of Food Code Rule 4-204.112, which essentially requires that an easily readable temperature-measuring device be located in a hot food storage unit to allow monitoring of food temperatures. The Respondent failed to timely correct this violation within the initial correction period, although it was corrected by the final re-inspection.

28. The Administrative Complaint charged the Respondent with a violation of Food Code Rule 6-202.11, which requires in material part that light bulbs be "shielded, coated, or otherwise shatter-resistant in areas where there is exposed food." Light bulbs near exposed food in the Respondent's facility were not shielded or coated, and there was no credible evidence that the bulbs were shatter resistant.

29. Subsection 509.261(1), Florida Statutes (2006), provides that each violation is treated as a separate offense and that each offense is punishable by a fine not to exceed

    $1,000 per offense. In addition, offenses may be disciplined by required attendance at an educational program sponsored by the Hospitality Education Program, or by suspension, revocation, or refusal of a license.

30. The Petitioner is seeking a fine of $3,800 in this case and a requirement that the Respondent complete an educational program. There is no evidence that the penalty sought by the Petitioner is inappropriate according to the range set forth in the statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of

$3,800 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violations identified herein.

DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.

COPIES FURNISHED:

Anthony Della Monica Mama D's Pasta & Grille 1819 Audubon Street

Clearwater, Florida 33764

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

William Veach, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 07-000491

Orders for Case No: 07-000491